Sixth amendment

Friday, September 28, 2012

The U.S. Supreme Court’s decision in Montejo v. Louisiana has been called an assault on the attorney-client relationship by criminal lawyers in Arizona and will greatly affect criminal lawyers in Arizona. Under Montejo officers may now interrogate defendants in the absence of counsel, even after charges have been brought and counsel has been retained or appointed, as long as the defendant waives his or her rights under Miranda.

Montejo, a 5-4 split decision, now overrules the precedent of Michigan v. Jackson, which once held that once a defendant requests the services of criminal lawyers in Arizona at an initial appearance in court, officers may not initiate any interrogation. This Article will examine Montejo and what criminal lawyers in Arizona can do in its aftermath to protect clients’ Sixth Amendment right to counsel. The most important action that criminal lawyers in Arizona can take is to make sure their clients expressly assert their right to counsel by advising them to sign a formal “Assertion of Rights” form. The use of such a form should become a regular part of criminal lawyers in Arizona practice in the federal and state courts.

The Montejo RulingJesse Montejo was arrested on charges of murder, and the court appointed an attorney to represent him at his preliminary hearing. The attorney was not present, however, and before he met with Montejo police visited Montejo at prison. Police asked Montejo to take ride with them and help them find the murder weapon. While the counsel waited for Montejo at the prison, police drove Montejo around and encouraged him to write a letter to the victim’s wife expressing remorse for victim’s murder. Once the letter was completed, police returned Montejo to the prison where he met with his attorney. Montejo was ultimately convicted and sentenced to death.

Montejo’s attorney was incensed that the officers had removed his client for interrogation in his absence. The Supreme Court of Louisiana rejected the attorney’s argument that the letter should be suppressed under Jackson, reasoning that Montejo has not requested counsel but was instead appointed counsel, which will have a drastic of on criminal lawyers in Arizona. Thus the Louisiana Supreme Court concluded that Jackson prophylactic rule barring any police officer-initiated interrogation once a defense counsel has appeared in court and requested counsel did not apply.

The Supreme Court agreed with Montejo that Louisiana’s approach was not workable and would create an arbitrary distinction between a defendant who requests appointment of counsel and a defendant for whom counsel is appointed without any request. However, the Court, after ordering a supplemental briefing on whether the case of Jackson should be overruled, concluded that the protection the case of Jackson provides is unnecessary in light of other existing protections. This ruling is sure to affect the way that criminal lawyers in Arizona will defend their clients.

The crux of Montejo’s reasoning in overruling the case of Jackson is that the antibadgering rule can be triggered only by an express statement made by the defendant requesting the presence of counsel during an interrogation. Merely accepting the appointment of defense counsel or even requesting the appointment of defense counsel is insufficient to show a desire to not speak with police officers without counsel present. This means that defendants must clearly request the services of criminal lawyers in Arizona.

About the AuthorDavid Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about anArizona Criminal Lawyer, visit our site.

Criminal Lawyers Arizona: Limits on the Sixth Amendment

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Tuesday, September 25, 2012

The 6th Amendment to the U.S. Constitution sets out many rights for defendants during a criminal prosecution, including the right of the accused to confront their accusers. The relevant text of the Confrontation Clause of the 6th Amendment reads as follows: In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.

The 14th Amendment has made the 6th Amendment's right to confrontation applicable to state court as well as federal court.

The confrontation clause guarantees criminal defendants the opportunity to face the prosecution's witnesses in the case against them and dispute the witnesses' testimony. This guarantee applies to both statements made in court and statements made outside of court that are offered as evidence during trial.

The Right to Cross-Examine

For in-court statements, the confrontation clause essentially means that the defendant has a right to cross-examine witnesses in order to challenge their testimony. Trial rules can shape or limit the manner of the cross-examination, so long as those rules stand up to a confrontation clause analysis. A trial court may prevent repetitive or unduly harassing cross-examination, but defendants otherwise enjoy a wide latitude when confronting witnesses during a cross-examination. If a trial judge restricts cross-examination too severely, a violation of the confrontation clause may have occurred.

Out-of-Court Statements

In building a case, prosecutors may want to use statements that people have made outside of the courtroom as evidence against the defendant. If the person making the statements does not appear in court to testify, however, using such statements may constitute a confrontation clause violation.

Here are some examples of out-of-court statements that may run afoul of the confrontation clause:

Statements by a non-testifying victim made during a police interrogation

Statements by a non-testifying victim to emergency medical responders, hospital staff or social workers

An autopsy report by a non-testifying medical examiner

Crawford v. Washington and Out-of-Court Statements

In 2004, the Supreme Court decided an important case, Crawford v. Washington, that altered the rules for when prosecutors can use out-of-court statements against a defendant.

Before Crawford, the Supreme Court had held that out-of-court statements did not violate the confrontation clause as long as they were adequately reliable. In Crawford, the Court changed course and determined that defendants had a right to cross-examine out-of-court statements, regardless of whether or not the statements were reliable.

After Crawford, the government cannot use out-of-court statements that are offered as testimony against the defendant unless the witness is unavailable and the defendant has had a previous opportunity to cross-examine the witness.

The Supreme Court recently carved out an important exception to this general rule for so-called "dying declarations". In Michigan v. Bryant, the Court ruled that a statement made by a dying person can be entered into evidence at trial if the statement was made to assist police with an "ongoing emergency" as opposed to merely helping the police investigate a past crime.

Melendez-Diaz v. Massachusetts and Forensic Tests

In Melendez-Diaz v. Massachusetts, the Supreme Court extended its rule from Crawford to cover reports from forensic analysts. Specifically, the Court ruled that prosecutors cannot use a report on the chemical makeup of a batch of alleged illegal drugs if the laboratory technician who prepared the report does not testify at trial.

The Court upheld, however, the use of "notice and demand" statutes. Notice and demand statutes allow the prosecution to notify the defendant of the prosecution's intent to use a drug report without additional testimony. If the defendant does not object to the prosecution's use of the report, no confrontation clause violation has occurred.

Recently, the Court further enhanced the rules for forensic analyses in a case known as Bullcoming v. New Mexico. In that case, the Court clarified the Melendez rule by stating that the actual person who performed the forensic test must also give testimony at trial. Testimony from a different forensic analyst from the same lab would not satisfy the 6th Amendment's requirements, according to the Court.

Wednesday, September 19, 2012

The "speedy trial" clause is intended to prevent long-term incarceration and detention without trial--which amounts to a prison sentence without a guilty verdict. The Sixth Amendment does not apply to the detainees at Guantanamo Bay, which serves as a good example of what some law enforcement communities might have considered doing to entire communities of low-income Americans were it not for the speedy trial clause

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.